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Full text of "Reid v. Russelsteel Limited, Board of Inquiry, May 1981 BOI 131"

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ONTARIO 

MINISTRY OF LABOUR 

MAY 2 9 1981 

HUMAN RIGH'"S 
COMMISSION 

IN THE MATTER OF THE HUMAN RIGHTS CODE, R.S.O. 
1970, Capter 318, as amended 



AND IN THE MATTER OF the complainant Mrs. Pearlina 
Reid against Russelsteel Limited 



BOARD OF INQUIRY 



Peter A. Gumming 



APPEARANGES ; 

Ms. Janet Minor - Gounsel for the Ontario Human 

Rights Commission and the 
Complainant Mrs. Pearlina Reid 



B. Earle - Gounsel for the Respondent 

Russelsteel Limited 



Dates of Hearing - November 25-27, 1980 



Place of Hearing 



180 Dundas Street West 
Toronto, Ontario 



DECISION 



This Board of Inquiry hearing involved two days of evidence, which 
included some twenty exhibits. 

The Complainant, Mrs. Pearlina Reid, of Downsview, Ontario, is a 
Canadian citizen, formerly of Jamaica, who is black. She has been trained 
as a "key-punch operator", is well-experienced and well-qualified in this 
regard, and described by the employer Respondent as "an average keypunch 
operator" ( Evidence , p. 106). 

In January, 1977, in response to an advertisement, she applied 
for a position of key-punch operator with the Respondent, Russelsteel Limited, 
was interviewed and hired by the Respondent, Jim Traecey (the manager of 

"information systems" for Russelsteel Limited and commenced work January 24, 
1977 at the company's Concord, Ontario office. She remained so employed until 
October 13, 1978, at which time her employment was terminated. 

The company employs six to nine keypunch operators at its Concord 
office. A key-punch operator takes handwritten sales orders received from 
some eight branches of Russelsteel Limited across Canada. The operators 
punch and verify information being processed, for computer purposes ( Evidence , 
p. 87, 88). It is clear that it is a boring task, described by Mr. Traecey 
as a "monotonous, mundane type of work", which perhaps explains why there was 
a very high turnover of operators at the Concord office of Russelsteel Limited. 
Mr. Traecey said that operators "lose their interest after a period of time" 
( Evidence , pp. 87, 140, 141). 

After she was fired, notwithstanding diligent efforts, Mrs. Reid 
was unable to obtain another job as a key-punch operator for some time, and 
it was apparent from her demeanor in giving evidence that she suffered a great 
deal of anguish in this regard. She tried very hard to get another job, was 
successful in getting some part-time work, and received some unemployment 
insurance benefits, but was unable to get another full-time job as a key-punch 
operator until November 19, 1979. 



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The Complaint was filed October 18, 1978 on the basis of alleged 
violations of paragraph 4(1) (b) and/or (g) of the Ontario Human Rights Code, 
R.S.O. 1970, c. 318 as am., which read: 



"4(1) No person shall 

(b) dismiss or refuse to employ or to continue 
to employ any person; 

(g) discriminate against any employee with regard 
to any terra or condition of employment, 

because of race, creed, colour, ... ancestry, or 
place of origin of such person or employee. 

It was apparent from the evidence given that there was no evidence 
suggesting a breach of s.4(l)(g) of the Code , and conceded readily by 
Commission's Counsel in argument that the issue turned simply upon whether 
there was a breach of s.4(l)(b) of the Code . 

In passing, one might query the distinction in s.4(l)(b) between 
"dismiss" and "refuse ... to continue to employ". It may be that the latter 
phrase embraces the situation of a lay-off or suspension, or a refusal to 
extend a limited initial term of employment, where there is not a formal 
dismissal. In any event, it is clear that the case at hand involved a 
dismissal. The issue is - \<ras Mrs. Reid dismissed from her employment because 
of a prohibited ground, contrary to s.4(l)(b) of the Code ? Moreover, the 
jurisprudence is clear that the Complainant is successful in establishing a 
violation of the Code if one of the reasons for dismissal was a prohibited 
ground. The prohibited basis for dismissal must be a proximate cause but 





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may "be present with other proximate causes. 

Mrs. Reid's dismissal came as a surprise to her, without warning, 
after 21 months of employment. She said Mr. Traecey had complained to her twice 



1. Regina v. Bushnell (1974), 4 O.R. (2d) 238 (C.A.) 

In the Bushnell case, an employee was dismissed for a number of reasons, 
only one of which was a prohibited ground under s. 110(3) of the Canada 
Labour Code , R.S.C. 1970, c. L-1, i.e. membership in a trade union. The 
Ontario Court of Appeal upheld the judgment of Hughes, J. to the effect 
that "union membership must be a proximate cause of dismissal, but it may 
be present with other proximate causes", (p. 290). In other words, regard- 
less of other justifiable motives for dismissal, when the prohibited 
ground of union membership was present, s. 110(3) of the Canada Labour 
Code applied. This decision has been cited with approval in other labour 
relations decisions, for example. Re Sheehan and Upper Lakes Shipping Ltd . 
81 D.L.R. (3d) 208; Pipher v. Atlantic Bus Lines Inc. [1980] O.L.R.B. 
Rep. 154. 

By analogy, the Bushnell decision has been considered in some decisions 
of the Ontario Himian Rights Commission. In the case of Heather Hawkes 
V. Brown's Ornamental Iron Works (Dec. 12, 1977), Prof. D.A. Soberman 
considered the situation where an employee was dismissed partly on grounds 
of age (a prohibited ground under the Ontario Human Rights Code ) , and 
partly on other grounds. Prof. Soberman followed Bushnell and decided 
that if "age were present in the mind" of the employer, then the dismissal 
of Mrs. Hawkes was contrary to the Code . 

That reasoning has been adopted, citing Bushnell as authority, in 
several subsequent decisions of the Ontario Human Rights Commission. In 
Sheila Robertson v. Metropolitan Investigation Security Ltd . (Aug. 10, 
1979), I cited with approval Prof. Soberman 's discussion of the Bushnell 
decision in Hawkes v. Brown. Similarly, in Jamie Bone v. Hamilton Tiger- 
Cats (Aug. 16, 1979), Prof. John McCamus cited both Bushnell and Re Sheehan 
and Upper Lakes Shipping Ltd. , supra , in deciding that where prohibited 
grounds are "motivating factors", then a violation of the Code has 
occurred, even though a number of other factors were also present. 

In two more recent decisions, Prof. Soberman has cited Bushnell as 
the "leading decision" on tlie issue of Code violations in the presence 
of factors not covr-red by the Code : Skeete and Samuel v. Jolyn Jewellry 
Ltd. (June 23, 1980); Hettv Hendrv v. L . C . 3 . . (Aug. 5, 1980). 

In summary, then, Bushnell holds that where one prohibited grounds is 
present, even amongst other non-prohibited grounds, a violation has occurred. 
This has been approved in other labour relations decisions, and has been 
applied by analogy in decisions of Boards of Inquiry under the Ontario 
Human Rights Code . 



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about taking coffee breaks that were too long and about talking too much 
while she was working (Evidence, pp. 10,11), but not otherwise about her 
work. Mr. Traecey's evidence was really to the same effect (Evidence, p. 154) 



Mrs. Reid readily admitted on cross-examination that she had never 
complained to Russelsteel management about any discrimination by employees 
(Evidence , pp. 26, 27, 28, 103, 114). She said Mr. Traecey never made any 
comments about her colour or racial origin either when hiring her or during 
the 21 months she was an employee (Evidence, p. 25). 

Mr. Traecey was the person with the authority on behalf of 
Russelsteel Limited to hire Mrs. Reid. Both he and Mrs. Reid got along well 
with each other, as was apparent from the evidence of both ( Evidence , pp. 96) 
She said he was "always friendly and nice" ( Evidence , p. 42). 

It was Mr. Traecey who purchased a card of congratulations 
signed by her fellow employees, and placed a small Canadian flag on her key 
punch machine, the day that Mrs. Reid obtained her Canadian citizenship 
(Evidence, p. 96). Ms. Adriana De Cicco (supervisor to Mrs. Reid at the 
time of Mrs. Reid's hiring) testified that Mr. Traecey had never indicated 
any dislike for blacks ( Evidence , p. 64). Ms. De Cicco, called as a witness 
by the Commission, testified that while the keypunch operators formed cliques, 
so far as she knew, there was no discrimination evidenced in respect of 
Mrs. Reid at the Concord office ( Evidence , pp. 63, 64, 66). 

Mr. Traecey had allowed Mrs. Reid a leave of absence to attend 
her grandfather's funeral in Jamaica (Evidence, pp. 31, 32, 95, 96). 

Mr. Traecey was critical of ;'rs. Reid's performance as an 
employee for several reasons, in particular, that she talked too much on 
the job. He testified that she also complained about her salary increase 
( Evidence , p. 103) and had a punctuality and attendance problem ( Evidence , 
pp. 108, 192, 193). Although the significance of her being late was disputed, 
the "Time Sheets" (Exhibit //13) established that she was late on several 
occasions but her position was not signficantly different from other employees 
in this regard. He felt she could not be rehabilitated, and guessed that 
"she was fed up with the day-to-day routine" ( Evidence , p. 193). 



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Mrs. Reid had taken a test, along with the other key-punch 
operators, June 15, 1978. Her perfonnance was satisfactory but below 
(see Exhibits //lO and 11) the other keypunch operators except for one other 
(who was also fired shortly after Mrs. Reid). Although the test was not 
devised and administered to assess the employees, but rather to determine 
the over-all volume generated from each of the company's branches, and 
productivity of this part of the company's operations ( Evidence , pp. 30, 31, 
54, 111), it did bear out the suspicion of Mr. Traecey that Mrs. Reid and 
another employee were less productive than the other key punch operators. 
However, Mr. Traecey did not at any time criticize her results on the 
test, or warn her that she would have to improve, and in fact left her 
with the impression in a discussion a week after the test (Evidence, p. 103) 
that she x^7as a valued employee and there was nothing wrong. There was no 
dissatisfaction or criticism expressed to Mrs. Reid (Evidence, pp. 107, 
147 - 149, 153, 154, 155, 201). Mr. Traecey said he treated her this way 
because at that time the "turnover ... was ... beyond belief" ( Evidence , 
pp. 106, 110, 111, 152, 156) and he v/anted to retain her as an employee for 
the time being ( Evidence , p. 107, 171, 172), admitting this was for "very 
selfish reasons" ( Evidence , p. 106). The test undoubtedly did adversely 
affect Mrs. Reid's employment, and it was perhaps invidious when it was 
administered expressly on the basis of not being an evaluation of her per- 
formance ( Evidence , pp. 136-138), and she was also later left with the 
impression that the Company was pleased with her work ( Evidence , p. 106, 107, 
152-155, 158). Then when she was dismissed, she really was not given any 
specific reasons other than that she needed "a change of job" ( Evidence , 
pp. 12, 13). 

However, this Inquiry/ must be distinguished from the situation of 
a grievance by a dismissed employee in a labour relations case, where an 
employer may have the onus to show just cause for term.ination and the 
arbitrator has the power to give relief if the dismissal is seen as being 



6. 

too harsh. Although the termination of Mrs. Reid ' s employment might 

well not stand up to scrutiny in a grievance procedure before a labour 

arbitration board, and the manner in which Mr. Traecey terminated her 

employment left much to be desired, the only issue before this Board of 

Inquiry is whether the termination was on a basis of a prohibited ground 

2 

under the Ontario Human Rights Code. 



2. The role of an arbitrator in a labour relations case is different 
from the role of a Board of Inquiry hearing a human rights case. 

According to section 37(8) of the Labour Relations Act R.S.O. 1970, 
c. 232: 

UTiere an arbitrator or arbitration board determines that an 
employee has been discharged or otherwise disciplined by an 
employer for cause and the collective agreement does not 
contain a specific penalty for the infraction that is the 
subject-matter of the arbitration, the arbitrator or 
arbitration board may substitute such other penalty for the 
discharge or discipline as to the arbitrator or arbitration 
board seems just and reasonable in all the circumstances. 

On the other hand, s. 14c of the Ontario Human Rights Code R.S.O. 1970, 
c. 318 provides: 

The board, after hearing a complaint, (a) shall decide whether 
or not any party has contravened this Act; and (b) may order 
any party who has contravened this Act to do any act or 
thing that, in the opinion of the board, constitutes full 
compliance with such provision and to rectify any injury 
caused to any person or to make compensation therefore. 

A Board of Inquiry has wider powers to grant remedies than an 
arbitrator. Such a board may order "any act or thing that ... 
constitutes full compliance ..." An arbitrator, though, may only 
"substitute such other penaltv ... as ... seems just and reason- 
able". 

However, the board may only make an order when the Code has actually 
been violated. An arbitrator under the Labour Relations Act may sub- 
stitute a penalty even when an employee has been dismissed "for cause". 

In other words, the Code prov/isions relating to remedies may only be 
invoked once it has been found that there is a breach thereof, for 

example, that dismissal from employment on the basis of a prohibited 
ground under the Code has occiirred. Thus, the authority of a Board 
of Inquiry to provide a remedy is operative on a narrower basis than 
the authority of an arbitrator under the Labour Relations Act . An 
arbitrator may penalize an employer in appropriate circumstances, even 
if the employee is dismissed "for cause" although once a Board of Inquiry 
has the right to provide a remedy, a broader scope of remedy is available. 



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7. 



On the evidence, I find that Mr. Traecey did not discriminate 
against Mrs. Reid, and in fact, treated all the key punch operators in 
the same manner irrespective of their race, colour, ancestry, or place of 
origin. 

Mr. Traecey testified that another key-punch operator, who is 
caucasion, and was allegedly non-productive and talked too much on the job, 
was fired shortly after Mrs. Reid, although she was formally dealt with as 
a "lay-off" because she had been absent for some time previously due to 
illness (Evidence , pp. 118-121, 161). Mr. Traecey had fired three key punch 
operators during the two months Mrs. Reid was employed with Russelsteel 
(Evidence , pp. 33, 34, 117, 135, 136, Exhibit //16) . Of the nine keypunch 
operators in February, 1978, only one was still an employee, being Shirley 
Mcllmurray, the supervisor, by November 10, 1978 (Evidence , p. Ill; Exhibit 
// 14). 

The only plausible basis for Mrs. Reid proving her Complaint 
rested upon her establishing that Shirley Mcllmurray (Mrs. Reid's supervisor 
for the last twenty months or so) disliked blacks and had influenced Mrs. 
Reid's being fired. Mrs. Reid's Complaint (Exhibit #2) included the allegation 

"One of the women in the section has said she dislikes 
blacks. I used to sit nearby her, but Mr. Traecey 
moved me out and put me stting by myself. I-Jhen a 
machine became vacant, again I went and sat there 
but the same woman went to Mr. Traecey and again I 
was moved out." 

Mrs. Reid testified that this reference to "One of the women ..." 
was in respect of Mrs. Mcllmurray ( Evidence , p. 49). 



Mrs. Reid testified that Shirley Mcllmurray had told her that 
neither Mrs. Mcllmurray nor Mrs. Mcllmurray 's father liked blacks ( Evidence , 
pp. 11, 19). 



8. 



However, Mrs. Raid herself admitted that she had never complained 
about anyone discriminating while she was employed, although she testified 
she had told management that Mrs. Mcllmurray was difficult to get along 
with; but there was really no suggestion this had anything to do with Mrs. 
Reid being black. ■ 

It is clear that Mrs. Mcllmurray did not regard Mrs. Raid's work 
performance as satisfactory (Evidence, pp. 210, 237). However, she denied 
any prejudice towards blacks or that she had expressed any statements of 
prejudice with respect to blacks ( Evidence , pp. 209-210, 234, 236). She 
admitted in cross-examination that her father held discriminatory views 
toward blacks, but disavowed any association on her o\-m part with such views 
( Evidence , pp. 209-210, 234, 236). 

Considering all the evidence, it would seam that Mrs. Mcllmurray 
made the discriminatory views of her father known to Mrs. Reid, perhaps 
through thoughtlessness or carelessness ( Evidence , p. 237), rather than with 
malicious intent, but this in itself should certainly not have happened. Mrs. 
Reid's own testimony was somewhat uncertain as to whether Mrs. Mcllmurray 
expressed a personal viewpoint to Mrs. Reid, or whether she simply stated 
that her father held this view toward blacks ( Evidence , pp. 27, 49), and 

Ms. De Cicco, who had worked with Mrs. Mcllmurray for some time did 

not know x^7hat Mrs. Mcllmurray 's personal views were towards blacks, 

but only "that once she mentioned something about her father having 

a bad experience with blacks" ( Evidence , pp. 62, 63). Considering all the 

evidence, I do not think it has been established that Mrs. Mcllmurray herself 

discriminated against blacks, and specifically, against Mrs. Reid. 

It is also clear, in any event, from the evidence that Mrs. 
Mcllmurray did not really directly participate in the decision to terminate 
Mrs. Reid's employment. Mr. Traecey ' tes tif ied that Mrs. Mcllmurray was called 
in to discuss the matter only after he and his assistant had already made 
that decision ( Evidence , pp. 172, 193, 194, 195, 198). Mrs. Mcllmurray was 
consulted at that point, and Mr. Traecey said she complained about Mrs. Reid's 
excessive talking and lack of productivity ( Evidence , pp. 130, 131, 153). 



Mrs. Reid's Complaint (Exhibit //2) further alleged: 

"I later learned that Mr. Jim Traecey , who had 
interviewed and hired me had found me qualified 
but had hesitated to hire me because of my being 
black. I am the only black working in the Head 
Office and one of the very few in the whole 
organization. " 

Neither of these allegations was well-founded. As for the 
latter allegation, Mrs. Reid had never been to another office of Russelsteel 
Limited and simply had no knov.-'ledge as to whether there V7ere fev;, or any 
other, blacks in the Russelsteel organisation, as she readily admitted on 
cross-examination ( Evidence , pp. 23, 2A) . Mr. Traecey testified he himself 
had not interviewed more than one other black applicant while he has been at 
Russelsteel ( Evidence , pp. 125, 126). Ms. De Cicco testified that a black 
person was employed by Russelsteel after Mrs. Reid ( Evidence , p. 62). Mr. 
Traecey testified that there were three or four Russelsteel employees who 
were not caucasion (Evidence, pp. 199, 200). 

As for the first allegation, Mrs. Reid herself testified that 
Mr. Traecey never raised the matter of her origin during the hiring process, 
and he did, of course, in fact hire her. During the twenty-one months she 
was an employee, he never once said anything about her colour. Adriana 
De Cicco testified that before Mrs. Reid started, Mr. Traecey simply asked 
Ms. De Cicco (after he had hired Mrs. Reid) if she thought Mrs. Reid would 
have any problems with the staff due to the fact she was black. Moreover, 
Ms. De Cicco testified that Mr. Traecey had never at any time indicated he 
didn't like black persons. 

On all of the evidence, I find that Mrs. Reid was not dismissed 
from her employment "because of race, colour, ancestry and/or place of 
origin" by the Respondents Russelsteel Limited and Jim Traecey. In fact, 
the evidence was clear that she had a fairly congenial relationship with both 
her co-workers and employer. Except for the manner in which her dism.issal 
came about, Mr. Traecey was quite kind toward her. With respect to her 



LO. 

dismissal, in fairness to Mrs. Roid, Mr. Traecey should have warned her 
in frank language about her shortcomings in performance as an employee, and 
given her a fair opportunity to improve and provide satisfactory service. 
I think Mr. Traecey was in error in this regard; hov/ever , I have no doubt 
that he was not motivated by any bias against Mrs. Reid because of her race, 
colour, ancestry or place of origin. He made the decision to fire her, 
and was of the view she would not improve and he had "given up" on her. 
I'Jhether right or wrong in this judgment, he should have warned Mrs. Reid 
and given her the chance to improve while knowing the full consequences if 
she failed to do so. Ivhile unfairness in dealing with an employee is a 
factor to consider in determining whether there is discrinination , in my 
view considering all the evidence before me in this Inquiry, I find there was 
no discrimination toward Mrs. Reid in her dismissal from her employment with 
Russelsteel Limited. 

As it was, being fired came as a real surprise and shock to 
Mrs. Reid, and as a consequence undoubtedly she felt she was being treated 
unfairly and she then made a conclusion as to why she had been fired based 
upon vague feelings about her employer-employee relationship at Russelsteel 
Limited. Mrs. Reid incorrectly rationalized her dismissal by inferring that 
it could only have happened due to discrimination by her employer. I have 
no doubt, after considering all the evidence, in coming to thv conclusion and 

making the finding that the Complainant was not dismissed by the Respondents 
from her employment because of her race, colour, ancestry and/or place of 
origin. 

For the reasons given, the Complaint is dismissed. 

DATED at Toronto this 19th day of May, 1981. 




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